Tag Archives: government hacking

The issue of the moment is: are we watching Big Brother or is Big Brother watching us? Our history and legal structure under the Constitution make clear that under ideal circumstances and normal operating procedure it is us that should be keeping any eye on Him to assure that He doesn’t get too big for his breeches. The revelations of the NSA intelligence gathering into our phone records and then into our computer usage have raised both legitimate and the hysterical questions and concerns. Let’s break this down into a rational and thoughtful examination of the law on the matter and our legal history and then we can address the question of the political or cultural propriety of doing any sweeping investigation of our “private” phone and computer use.

It has been revealed that the NSA which unfortunately I would wager about 90% of the population never heard of or understood its function until the last week has been systematically gathering data on phone calls made or received, the numbers, duration of the call and geographic location. Next came the information that the agency was also gathering data on our computer use and apparently recording forever our websites visited, email traffic, chats and postings and maybe other data. Supposedly all this was simply gathered and then used as a data base to project problems based on formulas developed by NSA nerds. Many are calling for the arrest and trial of the man who leaked most of this information and others praise him and assert his rights to free speech and the press to go public with the news.

Contrary to popular belief we have never had a “right” to privacy until the one-off case in Roe v. Wade when the Supremes in a fit of legal amnesia and dementia declared that such a right existed in the “penumbra” of the Constitution. No I am not making that up. That was their reasoned conclusion. We do have protections under the first and fourth amendments. The first gives us the right to speak our mind and protects the public debate in the press of any issue. The fourth protects us from unreasonable searches and seizures and provides that no search warrant shall issue except upon probable cause and must describe in detail the things to be seized. These amendments do not stand for the proposition that you can’t be investigated for a believed crime. Otherwise we would never convict anyone of anything unless it was done in front of eyewitnesses. The first does not prohibit searches or seizures, only the ones that are “unreasonable” , again if the law agencies couldn’t investigate alleged crimes by taking evidence then we couldn’t convict very many people. Also bear in mind that since our inception the consequences to the government for a violation of taking alleged evidence under the fourth is that any such evidence and any evidence directly or indirectly derived as a result of such seizure cannot be introduced at trial. That is well-established law.

We are now at a moment when we have this still very ill-defined right of privacy and certainly a public expectation of some privacy. But again that alleged right clashes with our legal precedent. For example the courts have held for decades that the information on the outside of an envelope going in the mail is not private and the government can record and keep that data. Historically, whether authorized or not our intelligence folks have in fact peeked in mail they believed was sent from or going to suspected terrorists or spies. Almost a hundred years ago one of our Secretarys of State famously said when offered the content of private mail from alleged hostile foreign embassy personnel that “gentlemen do not read other gentlemen’s mail”. In the age of Facebook, etc and the vast sweeps of data gathering by NSA that seems so charmingly naive today. Likewise courts have held that when you go out in public on the street or wherever you do not have any right to privacy; thus all those surveillance cameras are legitimate and their images can be used as evidence in a trial even though the subject did not agree to being filmed. The courts have also ruled consistently that when you use the phone there is no expectation of privacy. Thus phone wire taps have been allowed for decades. Lincoln during the War Between the States had his people routinely grab mail and intercept telegrams when believed to be important to the war effort.

But for the government to get your personal information the question comes are they required to prove up “probable cause” and get a specific warrant for your data. In the NSA sweep of millions of phone records that clearly was not done as to each person. Were we entitled to some right of privacy under that Roe reasoning when on the phone or our computer? Was the gathering of that data an “unreasonable” search and seizure? Or reasonable given the terrorists threat extant in the modern world?

For one I don’t like the idea of the Feds grabbing all that personal data even if it is ruled legal by the courts which would be a distinct possibility. Don’t trust them generally speaking and a strong case can be made that the scope of these efforts are clearly overkill; that they cost too much money for such little results. We would be safer if a far fewer number of analysts developed good profiling techniques and then really listened in or monitored everything these suspect folks here or abroad did. That is a political decision of mine and ultimately the politics will determine the outcome of this debate. Rest assured if we ever have a real war again and there is an existential threat to the nation we will do whatever it takes to win and personal liberties will be pushed aside just as they were by that great progressive Woodrow Wilson during WWI and Roosevelt during WWII.

Let’s hope that NSA, CIA and certainly the FBI are significantly reduced in size and thus cost soon and that they henceforth can only target our data upon specific probable cause. All those agencies not counting the contractors who work with them total over 50,000 people. Gee, how many does it take? The cost of this alleged protection from terrorists is out of all proportion to the danger which is admittedly real. Let’s fight the terrorists tougher, smarter and with greater effect by focusing our attention on the most likely suspects and leave the average Joe alone.